As we explain in section B.2 of chapter 4 of the second edition, territory regarded in law as terra nullius was rarely ever empty of people. The literal meaning of the Latin phrase does not equate to its precise legal content, with a fiction having been developed within the law of nations of that time to treat the lands as if vacant to make the doctrine of discovery fit the situation presented. However, within Canadian law, it has been held that the terra nullius concept has no application vis-à-vis the European assertion of sovereignty over lands now part of Canada.

On 26 June 2014, in a unanimous 8:0 decision that marked the first time the highest court has recognized the existence of Aboriginal title on a particular site, the Supreme Court of Canada made clear that: “The doctrine of terra nullius (that no one owned the land prior to European assertion of sovereignty) never applied in Canada, as confirmed by the Royal Proclamation (1763), R.S.C. 1985, App. II, No. 1.” See Tsilhqot’in Nation v British Columbia, 2014 SCC 44 at para. 69.

The case concerned an Aboriginal title claim to lands within the province of British Columbia and as the Court explains: “At the time of assertion of European sovereignty, the Crown acquired radical or underlying title to all the land in the province. This Crown title, however, was burdened by the pre-existing legal rights of Aboriginal people who occupied and used the land prior to European arrival. … The Aboriginal interest in land that burdens the Crown’s underlying title is an independent legal interest, which gives rise to a fiduciary duty on the part of the Crown.”

However, as discussed in section B.3 of the second edition, the doctrine of discovery within international law only gave rise to an inchoate claim of sovereignty over territory, giving rise to the more important doctrine of effective occupation. A similar doctrine of occupation can also be found within Canadian law with respect to Aboriginal title claims, with the Supreme Court of Canada confirming that one must examine the continuity, exclusivity and sufficiency of the occupation of the land claimed to establish title at the time of the assertion of European sovereignty.